Interesting IP law questions arise when we view AIs as creators in their own right rather than mere software tools.
At its simplest, AI is software (or computer code) that runs on hardware. However, there are now numerous examples of patentable inventions, literary works, works of art, music, and databases “created” by AIs. Are those AIs inventors or authors in their own right? This blog looks at the issues through an UK law lens but these issues are not limited to UK law.
Patents
From a patent law perspective, the issue is straightforward. An AI cannot be an inventor of a patent because it is a machine and not a natural person[1]. The UK’s approach is consistent with that of a number of other jurisdictions, including the US.
Copyright
From a copyright law perspective, unlike the Patents Act 1977, the Copyright, Designs and Patents Act 1988 actually addresses computer generated works. Specifically, under section 9, for any “literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”. The language was described as the “first” to attempt “to deal specifically with the advent of artificial intelligence” when it was introduced in 1987.
Assuming for present purposes that the relevant AI generated work is “original” enough to qualify for copyright protection, identifying the “person” who has made the arrangements necessary to create the work may not be easy and lead to unexpected results: is it the company or programmers who designed the AI or the user who inputs the prompts necessary to create the story or artwork?
As yet, there is no binding case law on the correct meaning of section 9. As a result, many providers of AI systems specifically address the issue in their Ts&Cs. OpenAI’s terms, for example, state that users own (a) the input prompts and other content added to Open AI and (b) output received from OpenAI based on the user’s input[2]. Similarly, Microsoft does not claim any copyright (or other IP rights) in the outputs of its Copilot services[3] and Amazon Web Services states that output generated by its AI services is the customer’s content[4]. Strictly speaking, if the result of section 9 is that the provider of the AI system rather than the user is the author of the copyrighted work, assignments may be required to transfer the rights from the provider to the user. Not all providers include an operative and effective assignment in their Ts&Cs, however.
The UK’s approach is different to that in the US where AI generated works are likely to be part of the public domain, unless there is sufficient human authorship to support a copyright claim, and then only the human authored elements of the work will be protected[5].
Key Points to note for users of AI services
As is usual for patents and copyrights, the grant and subsistence of IP rights is determined nationally. Users should be aware of the position in the country in which they are using the AI service to ensure that works are subject to IP protection if they are using the AI service to create valuable content. Reliance on the ownership statement or assignment in Ts&Cs only goes so far as to address the position between the parties, it will not create protected works if that protection does not exist at law.
[1] Thaler v. Comptroller-General of Patents, Designs and Trade Marks, [2023] UKSC 49.
[2] See e.g. “content” on https://openai.com/policies/terms-of-use, and section 3 of https://openai.com/policies/business-terms.
[3] See “output content” on https://www.microsoft.com/licensing/terms/product/ForOnlineServices/all.
[4] See section 50.2 on https://aws.amazon.com/service-terms/.
[5] See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence for more details, available on https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence#p-52.
